Citation Nr: 0123672
Decision Date: 09/28/01 Archive Date: 10/02/01
DOCKET NO. 99-24 688 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for right hand carpal
tunnel syndrome.
2. Entitlement to service connection for left hand carpal
tunnel syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Neil T. Werner, Counsel
INTRODUCTION
The veteran served on active duty from January 1975 to
October 1981 and from May 1984 to April 1989.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1999 decision of the
Philadelphia, Pennsylvania, Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied claims of
service connection for right and left hand carpal tunnel
syndrome (hereafter "bilateral carpal tunnel syndrome").
Initially, the Board notes that, in December 1999, the
veteran filed a notice of disagreement with the RO's April
1999 decision that, among other things, denied an increased
rating for service connected ulcerative colitis. In December
1999, the RO issued a statement of the case as to this issue,
but no substantive appeal was thereafter received by the RO
on this issue. See 38 C.F.R. §§ 20.200, 20.302(c) (2000) (an
appeal requires a notice of disagreement and a timely filed
substantive appeal after issuance of a statement of the
case). Consequently, this issue is not before the Board.
Id.
REMAND
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
superseded the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West,
12 Vet. App. 477 (1999), withdrawn sub nom; Morton v. Gober,
No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA could not assist in the development of
a claim that was not well grounded. This change in the law
is now applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000); see also Holliday v. Principi, 14 Vet. App. 280
(2001). To implement the provisions of the law, the VA
promulgated regulations published at 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a)).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, and implementing VA
regulations, a remand in this case is required for compliance
with the notice and duty to assist provisions contained in
the new law. See Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2096-99 (2000)
(to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A,
and 5107). The change requires that notice be provided to a
claimant as to what is required for a claim to be successful,
and may require multiple notices during the pendency of the
adjudication process. See Holliday, at 289. In order to
ensure that the veteran in this case is afforded all the
protections of the Veterans Claims Assistance Act of 2000, as
implemented by VA, a remand is required. See Bernard v.
Brown, 4 Vet. App. 384 (1993); Holliday, supra.
On remand, the RO should undertake any action deemed
necessary to ensure that the requirements of the new law have
been satisfied. In this regard, the Board notes that, at an
April 2001 hearing before the undersigned, the veteran
testified that a Dr. Busch (sic) (Dr. David Bush), with
Geisinger Medical Center (sic) (PennState Geisinger Health
Group), told him that his carpal tunnel syndrome was caused
by military service or caused or aggravated by his service
connected hand disabilities. However, a review of the record
on appeal does not reveal any opinion as to the origins or
etiology of the veteran's bilateral carpal tunnel syndrome.
Since a medical opinion linking these disabilities to
military service or to an already service-connected
disability would be critical to the veteran's claims for
service connection, further action is required before final
appellate review may be accomplished. This is so because VA
has not fulfilled its duty to notify the veteran of the
evidence necessary to substantiate his claims and duty to
assist in obtaining such evidence. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-99 (2000); see also Robinette v. Brown,
8 Vet. App. 69 (1995).
Next, the Board finds that, because the change in the law has
eliminated the need for the claimant to file a well-grounded
claim, the duty to assist now requires that the veteran, on
remand, be scheduled for a VA examination so that medical
opinion evidence can be obtained to determine if carpal
tunnel syndrome in either hand is related to military service
or to already service-connected disability.
On remand, the RO must also obtain and associate with the
record all relevant treatment records on file with the
sources identified by the veteran. The Board notes that the
record shows that the veteran reported having first received
treatment for carpal tunnel syndrome at Quantico Marine Corps
Base in Quantico, VA, in 1984. Thereafter, in 1989, he
reported that he was treated for carpal tunnel syndrome at
the San Diego Naval Hospital. Thereafter, the veteran
reported that he had received post-service treatment for
carpal tunnel syndrome at VA medical centers (VAMCs) in
Lebanon and Wilkes-Barre, as well as at the Hershey Medical
Center and the Geisinger medical facility. The veteran also
reported that he had seen private physicians for treatment
for his carpal tunnel syndrome. Specifically, he reported
that he had seen Drs. Hosey, Lewis, and Bush. The veteran
also reported that, at some point following his personal
hearing, he was planning to have surgery to release the
carpal tunnel syndrome. In addition, the veteran testified
that, in 1991, he lost a job as a teacher with the Penn Manor
school district in the Lancaster, PA area because of problems
with his hands due to carpal tunnel syndrome. And, since
that time, he had worked for the State Department of
Corrections, but his carpal tunnel syndrome continued to
cause him problems at work. In addition, medical records in
the claims file show the veteran received treatment from Drs.
Dennis DeVita, Jonathan P. Hosey, Amrit S. Narula, and Ivor
Lewis as well as from Good Samaritan Regional Medical Center,
PennState Geisinger Health Group, and the Philadelphia VAMC.
While the RO has obtained many service medical records, as
well as some post-service treatment records, records from all
of the above sources do not appear in the claims file.
Therefore, action to obtain such records is required.
Lastly, the Board notes that the veteran, in February 1998,
filed a notice of disagreement (NOD) with the RO's January
1998 decision that granted service connection for a left knee
disability and Dupuytren's contracture of the right hand and
assigned 10 percent and non compensable ratings,
respectively. See Gallegos v. Gober, 14 Vet. App. 50 (2000)
(any expression of a desire for review suffices as a NOD). A
statement of the case addressing these issues has not been
issued by the RO. 38 C.F.R. §§ 19.29, 19.30 (2000). Since
the Court has indicated that referral to the RO of an issue
with which the veteran disagrees does not suffice, see
Manlincon v. West, 12 Vet. App. 238 (1999), a remand is
required. Consequently, these issues are also remanded.
This case is REMANDED to the RO for the following actions:
1. The veteran should be allowed to
supplement the record on appeal. The RO
should review the claims folder and ensure
that all notification and development
required by the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, and
implementing VA regulations, is completed.
In particular, the RO should ensure that
the new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully
satisfied. Such development should
include, but is not limited to, the
following actions.
a. Advising the veteran of the
information needed in order to
substantiate his claims for service
connection. Specifically, he should
be told that such evidence might
include any statement by a medical
practitioner showing a medical nexus
between his carpal tunnel syndrome
and military service or his already
service-connected right or left hand
disabilities. The veteran should be
given the opportunity to attempt to
secure such statements from the
doctor about whom he testified in
April 2001 or from any other medical
professional.
b. Contacting Dr. Bush and asking
him to provide VA with any medical
opinion he may have formed regarding
a relationship between the veteran's
current carpal tunnel syndrome and
military service or between current
carpal tunnel syndrome and the
veteran's service-connected right or
left hand disability.
c. Obtaining and associating with
the record all relevant clinical
records from Quantico Marine Corps
Base, Quantico, VA, for 1984 and
from the San Diego Naval Hospital
for 1989.
d. Obtaining and associating with
the record all relevant treatment
records on file with VAMCs in
Philadelphia, Lebanon, and Wilkes-
Barre, as well as all relevant
treatment records kept by Drs.
Hosey, Lewis, Bush, DeVita, Narula,
Hosey, and Lewis, the Good Samaritan
Regional Medical Center, Hershey
Medical Center, and PennState
Geisinger Health Group. In
addition, the RO should obtain and
associate with the record all
relevant treatment records on file
with all of the veteran's post-
service employers (i.e., Penn Manor
school district and the State
Department of Corrections) and all
records kept by any other physician
or hospital identified by the
veteran.
e. In the event any attempts to
secure information are unsuccessful,
such efforts should be fully
documented, and the veteran should
be notified in accordance with the
Veterans Claims Assistance Act of
2000 and implementing VA
regulations.
2. Next, the RO should arrange to have
the veteran examined. On examination, the
examiner should elicit from the veteran a
detailed history regarding the onset and
progression of relevant symptoms. Next,
the examiner should review the entire
record and provide an opinion as whether
the veteran has carpal tunnel syndrome in
either the right or left hand, and, if so,
the medical probability that any current
carpal tunnel syndrome is attributable to
military service or is caused or made
worse by already service-connected right
or left hand disabilities. If it is
determined that there is no current
disability, no relationship to military
service, or no relationship to service-
connected disabilities, the examiner
should expressly say so and provide
detailed reasons for such opinions.
3. The RO should ensure that the
examination report complies with the
instructions set out above. After all
notice requirements have been satisfied,
and the duty to assist has been
fulfilled, the RO should take
adjudicatory action on the claims here at
issue. If any of the benefits sought are
not granted, a supplemental statement of
the case should be issued.
4. As for the claims for higher
evaluations for service-connected left
knee disability and Dupuytren's
contracture of the right hand, the RO
should issue a statement of the case.
If, and only if, the veteran files a
timely substantive appeal as to either of
these issues, that issue should be
returned for review by the Board.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required by the
veteran until he receives further notice, but he may furnish
additional evidence and argument while the case is in remand
status. Kutscherousky v. West, 12 Vet. App. 369 (1999);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992). The purpose of this remand is
to comply with governing adjudicative procedures. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
D. C. Spickler
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).